JUDGMENT : S. Vimala, J. (i) In a suit for injunction, when it is necessary to seek the relief of declaration of title, either as a main/consequential relief ? (ii) In a suit for injunction, whether seeking the prayer for declaration of title would be mandatory, whenever the defendant denies the title of the plaintiff to the suit property ? (iii) When a person's title to the property can be claimed to be cloudy ? - when there is apparent defect in the title of the plaintiff to the property ; or when some prima facie right of a third party over it, is made out; or on account of mere denial of the plaintiff's title by the defendant ? These issues are arising for consideration in this second appeal. 2. The plaintiff (Dr. K. Selvaraj) filed a suit for permanent injunction against defendants 1 to 5. Defendants 1 and 2 are husband and wife, of whom, third defendant is the son and defendants 4 and 5 are daughters. The plaintiff claimed title to the suit properties, by virtue of the sale deed, dated 15.04.1999. Plaintiff's predecessor in title, namely, S. Shanmugam, purchased the suit properties from defendants 1 to 3, on 29.12.1997. Claiming that, defendants 4 and 5 have got right and interest over the suit properties, there was interference with the possession and enjoyment of the suit properties. On these allegations, the suit for injunction in O.S.No.238 of 1999 on the file of Additional District Munsif, Namakkal, was filed. 2.1. Defendants 1 to 3 disputed the claim on the ground that neither the plaintiff nor his predecessor in title had title to the suit properties. Defendants had no intention to sell the property. The plaintiff's vendor (Shanmugam) was a partner in M/s.Sun Finance Company, from which, the defendants borrowed a sum of Rs. 1,10,000/- as loan. A conditional sale deed was executed in favour of the plaintiff's vendor, with a condition that whenever defendants repay the loan amount, the plaintiff's vendor should re-convey the property, by executing the sale deed. 2.2. The plaintiff's vendor filed a suit in O.S.No.614 of 1998. After obtaining an order of injunction, the plaintiff's vendor trespassed into the property. 2.3. Defendants 4 and 5 filed a written statement contending that the suit properties were ancestral properties and some of them are properties purchased from and out of the joint family income. 2.2. The plaintiff's vendor filed a suit in O.S.No.614 of 1998. After obtaining an order of injunction, the plaintiff's vendor trespassed into the property. 2.3. Defendants 4 and 5 filed a written statement contending that the suit properties were ancestral properties and some of them are properties purchased from and out of the joint family income. Defendants 1 to 3, unmindful of the share of defendants 4 and 5, executed the sale deed, for the purpose of obtaining loan from M/s.Sun Finance Company. Defendants 4 and 5 were not aware of the sale deed executed by defendants 1 to 3. Defendants 4 and 5 filed a suit in O.S.No.656 of 1998, seeking for a declaration that the sale deed is not valid and for a relief of partition and separate possession. 2.4. The plaintiff relied upon Ex.P-7-kist receipt and Exs.P-8 to P-11-adangal extracts. The plaintiff claimed that defendants 4 and 5 executed a Muchalika under Ex.P-12 with the plaintiff's vendor (Shanmugam) in which, defendants 4 and 5 agreed to pay a sum of Rs. 5,30,000/- and to get the sale deed executed from the plaintiff's vendor. Disbelieving Ex.P-12-Muchalika and giving a finding that documents filed did not prove possession of the plaintiff over the suit property, the suit was dismissed. 3. Challenging the same, the plaintiff filed an appeal in A.S.No.9 of 2000 before the Subordinate Court, Namakkal. The appeal was allowed, thereby the suit came to be decreed. Challenging the same, defendants 4 and 5 have filed this Second Appeal. 4. The Second Appeal has been admitted on the following substantial questions of law:- "1. Whether the lower appellate court was right in relying upon Ex.A12 to hold that the appellants have lost their rights more so when Ex.A12 is unregistered? 2. Whether the lower appellate court was right in reversing the factual findings of the trial court without giving its reasons for not agreeing with the trial court? 5. A perusal of the judgment of the first appellate court goes to show that the Court has relied upon the evidence of D.W.2 (Jayanthi, the fourth defendant). The relevant part of admission is to the following effect:- (i) Item Nos.2 to 9 of the suit property belongs to her mother exclusively and therefore, over those properties she has no rights and therefore, those properties were not included in the suit for partition filed by her. The relevant part of admission is to the following effect:- (i) Item Nos.2 to 9 of the suit property belongs to her mother exclusively and therefore, over those properties she has no rights and therefore, those properties were not included in the suit for partition filed by her. (ii) Even prior to obtaining an order of injunction from the Court (in O.S.No.614 of 1998 filed by the plaintiff's vendor), the plaintiff's vendor was in possession of the property, i.e., from the date of sale itself. 5.1. Based on those vital piece of evidence, the first appellate court came to the conclusion that defendants 4 and 5 have no rights over the suit properties and therefore, they have no right to disturb the possession of the suit properties. Incidentally, there is a finding that the sale deed in favour of the plaintiff's vendor and consequently, the sale deed in favour of the plaintiff are valid documents. 5.2. There is also a finding that in a suit for injunction, the issue regarding possession as on the date of suit, is the main and relevant issue and if documents are looked into in that perspective, plaintiff alone was in possession and enjoyment of the suit properties. 6. So far as, defendants 1 to 3 are concerned, they are the persons, who executed the sale deed and they are bound by the rights and liabilities as contemplated under Section 55 of The Transfer of Property Act, 1882, which reads thus:- "55. 6. So far as, defendants 1 to 3 are concerned, they are the persons, who executed the sale deed and they are bound by the rights and liabilities as contemplated under Section 55 of The Transfer of Property Act, 1882, which reads thus:- "55. Rights and liabilities of buyer and seller.- In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold: (1) The seller is bound- (a) to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover; (b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller' s possession or power; (c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto; (d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place; (e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents; (f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits; (g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all incumbrance's on such property due on such date, and, except where the property is sold subject to incumbrance's, to discharge all incumbrance's on the property then existing. (2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same: Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it. The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. (3) Where the whole of the purchase- money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller's possession or power: ....." 6.1. Section 55 of the Transfer of Property Act stipulates the rights and liabilities of both the seller and the buyer, both before completion and after completion of the transaction. The rights and liabilities before completion are all contractual, with the exception of the seller's right to take the rent and profit as contemplated under Section 55(4)(a), which is a right the seller has, in view of the fact that he continues to be the owner even after the contract. The seller's liabilities are- (a) to produce title deeds under Section 55(1)(b); (b) to answer questions relating to tile under Section 55(1)(c); (c) to execute the conveyance as per the terms and conditions under Section 55(1)(d); (d) to disclose the defects under Section 55 (1)(a); and (e) get merged with the conveyance once the deed of conveyance is executed. There is no remedy on them after the conveyance, except on the ground of fraud, but the omission to disclose the defect in the title is expressly declared to be fraudulent. 6.2. After completion of the transaction, the seller has a liability to give possession under Section 55(5)(c); to deliver title deeds on receipt of the sale price under Section 55(5)(d); and there is an implied covenant to title under Section 55(2). The seller's liability to give possession under Section 55(1)(f) and to guarantee title as per Section 55(2) are contractual liabilities implied in the conveyance. 7. The seller's liability to give possession under Section 55(1)(f) and to guarantee title as per Section 55(2) are contractual liabilities implied in the conveyance. 7. Therefore, when defendants 1 to 3 admit the execution of sale deed, it is their duty to have delivered possession and when the sale deed itself has recorded the delivery of possession to the buyer, defendants 1 to 3 are estopped from disputing the fact that the plaintiff is in legal possession of the suit property. It would be appropriate to quote Section 115 of the Indian Evidence Act, which is reproduced for convenient reference:- "115. Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Illustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title." 7.1. There is a legal bar for defendants 1 to 3 to dispute the title in possession of the plaintiff over the suit properties, which, if permitted, would be contrary to the terms of the conveyance. 7.2. The executant himself can challenge the title only when the document is claimed as sham and nominal or void. That is not the case here. 8. In a suit for injunction, the circumstances under which the relief of declaration has to be sought for, has been explained in the decision of the Hon'ble Supreme Court reported in 2008 (6) CTC 237 Ananthula Sudhakar v. P.Buchi Reddy (Dead) by L.Rs and Others. "17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. "17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de injure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case." 8.1. It is not the case where the plaintiff does not have possession. Though it is a suit for injunction simpliciter, the issue of title is not directly and substantially in issue, so far as defendants 1 to 3 are concerned. It is a case where there are necessary pleadings with regard to title. The parties have been permitted to lead evidence on title. The issue regarding title is simple and straight-forward. Therefore, it is possible to decide the issue regarding title even though the suit is filed for injunction. As per the norms laid down in the above case, this case would be an exception to the normal rule that question of title will not be decided in a suit for injunction. The plaintiff having clear title and possession, suing for injunction, should not be driven to costlier and more cumbersome remedy of suit for declaration, merely because the defendants 1 to 3 make a claim, when they are legally estopped from making any claim. 9. So far as defendants 4 and 5 are concerned, it is the case of the plaintiff that defendants 4 and 5 executed a Muchalika in favour of Dr. Shanmugam, the plaintiff's predecessor in title, agreeing to pay a sum of Rs. 5,30,000/- to him from 23.12.1998 to 23.03.1999; if paid, the property will be conveyed to defendants 4 and 5 and on failure, defendants 4 and 5 would lose their rights, title and interest in the property; defendants 4 and 5 having failed to pay the amount to the plaintiff's predecessor in title, have no right to make any claim over the suit property. 10. 10. So far as Ex.P-12 (Muchalika) is concerned, the finding of the First Appellate Court is that the plea regarding Ex.P-12 is tainted with intimidation has not been taken in the written statement and as the evidence is contrary to the pleadings, the evidence regarding invalidity of Ex.P-12 cannot be accepted. There is also a finding that as Ex.P-12 is signed by defendants 1 to 3 and as the signature under Ex.P-12 has been admitted, it must be a true document. 10.1. There is yet another important finding that there is no proof to show that Ex.A-2 (sale deed) was executed as security for repayment of loan. The First Appellate Court, in paragraph 22 of the judgment, has discussed about the recitals made in Exs.A-1 and A-2, where under the suit items 2 to 9 have been described as exclusive property of the second defendant, Ramayee, alone and therefore, defendants 4 and 5 have no right over the property at all. Therefore, the contention that the first appellate court has reversed the finding without any basic materials cannot be accepted. 11. When it is admitted that the defendants 4 and 5 have already filed a suit for partition and it is pending, what is the remedy open to them. The 4th defendant (D.W.2) has admitted in her evidence that item Nos.2 to 9 of the suit property belongs to her mother exclusively and therefore, over those properties she has no rights and therefore, those properties were not included in the suit for partition filed by her. With regard to Item No.1, there is no finding. Therefore, it is made clear that it is open to defendants 4 and 5 to establish their right in the suit filed by them for partition in O.S.No.656 of 1998, if so advised. 12. For the aforesaid reasons, this Second Appeal has no merits and it is dismissed. The judgment and decree of the learned Subordinate Judge, Namakkal, dated 28.10.2003, made in A.S.No.9 of 2000, dismissing the suit, are confirmed. No costs. Consequently, the connected CMP is closed. C.M.P. Closed.